Simon John Mckee v Simon James Overland [1995] ACTSC 46 (22 May 1995)

SUPREME COURT OF THE ACT

SIMON JOHN McKEE v. SIMON JAMES OVERLAND
No. SCA89 of 1994
Number of pages - 7
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Law - appeal against conviction under s546E(1) of Crimes Act 1900 (ACT) - allegation of burglary found to be false - property alleged to be stolen later returned - effect of circumstantial case against the accused - any inference of guilt drawn must be beyond reasonable doubt - effect of inability to draw any conclusion from the facts other than guilt of the accused - inability to draw an adverse inference from the accused's decision to exercise right to silence.

Crimes Act 1900 (ACT), s546E(1)

M v R [1994] HCA 63; (1994) 126 ALR 325
Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472
Petty v R [1991] HCA 34; (1991) 173 CLR 95
Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Edwards v R [1993] HCA 63; (1993) 178 CLR 193

HEARING

CANBERRA, 6 April 1995
22:5:1995

Counsel for the Appellant: Mr B Meagher

Instructing solicitors: Myer Boetcher and Clapham

Counsel for the Defendant: Mr A Doig

Instructing solicitors: ACT Director of Public
Prosecutions

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed.

DECISION

HIGGINS JOn 24 October 1994, the appellant, a Detective Sergeant in the Australian Federal Police (AFP) was found guilty by Magistrate Somes of an offence against s546E(1) of the Crimes Act 1900 (ACT). A conviction was recorded.

2. By notice of appeal dated 28 October 1994, the appellant requests this Court to set aside that finding and sentence and to substitute a verdict of acquittal. The only ground for appeal is that, on the evidence before him, the learned Magistrate should have entertained a reasonable doubt as to the guilt of the appellant.

3. The role of an appellate court on such an appeal was referred to in M v R [1994] HCA 63; (1994) 126 ALR 325. On appeal, this Court proceeds by way of rehearing and may draw its own inferences of fact from the evidence. The Court will, however, pay due regard to the findings, inferences and opinions expressed by the learned Magistrate and, particularly, will be bound to respect the advantage enjoyed by him or her in seeing and hearing those witnesses who gave oral evidence: see Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472.

4. Section 546E(1) of the Crimes Act is in the following terms: A person who, by any means, makes any representation, creates any circumstance or does any other act intended to make it appear falsely that a situation exists, or an event has occurred, that calls for investigation or action by a police officer or emergency services officer is, if the representation, circumstance or act comes to the knowledge of a police officer or emergency services officer, guilty of an offence punishable, on conviction, by a fine of $2,000 or by imprisonment for 12 months.

5. The charge, laid by information dated 2 March 1994, was that the appellant:

... in the Australian Capital Territory, on the 7th February
1993, by reporting a burglary on premises at 58 Hurley Street,
Mawson, made a representation intended to make it appear falsely
that an event had occurred that called for investigation by a
police officer, which said representation came to the knowledge
of a police officer, namely, Anthony Windsor Donne.

6. The hearing of that charge took place on 24 October 1994. The appellant was represented by counsel.

7. Constable Anthony Windsor Donne gave evidence that he attended at 58 Hurley Street, Mawson in the Australian Capital Territory, "in relation to a burglary". At those premises he met the appellant. Although he could not recall the terms of the conversation he had with the appellant, he was shown by him an area where someone had apparently gained entry to the premises. He was also given information by the appellant as to property apparently stolen. Constable Donne's note was:

Forty CDs, $1,000; Sharp video rec. $1,000; One video camera
JVC, $1,000; One Minolta 7000I, $900; ... $100 in $1 and $2 coins

8. His notes also described the presumed point of entry:

... bedroom window, flyscreen prised open, window pulled out.

9. A scientific branch police officer then attended to examine the presumed crime scene. An official report was placed by Constable Donne on police records.

10. In cross-examination, Constable Donne agreed that there had been numerous burglaries reported about that time in the general area of the appellant's residence.

11. The crime scene officer, Constable Philip Laurence Turner, deposed to having examined the premises at 58 Hurley Street. He found marks consistent with fingerprints at the point of entry but none were identifiable. He had attended a number of burglary scenes in the same area about the same time.

12. There was evidence also from Constable Karen Mary Hargreaves. She had served with the appellant in the course of her duties in the AFP. She had seen him, whilst they were jointly on duty in Sydney, sell or attempt to sell what may have been a video camera. However, his Worship, quite correctly in my view, found it impossible to draw any inference adverse to the appellant from this evidence.

13. Det Sgt Simon James Overland, the respondent informant, interviewed the appellant concerning the alleged burglary.

14. At that time there was also suspicion that the appellant had, by staging the burglary, intended to steal from his household insurer by making a false claim.

15. The appellant had notified his insurer that he wished to make a claim in respect of the consequences of the apparent burglary. However, his policy had no contents cover. The insurer, whilst receiving the report of loss of contents, formally declined cover for loss of contents. There was, therefore, no indemnity available to the appellant for loss of contents from his premises although some of the statements attributed to him following the apparent burglary indicated that he believed that there was, or that there should have been, contents cover. However, his Worship dismissed the charge of attempted theft and, correctly in my view, did not draw any adverse inference from those statements attributed to the appellant as to the remaining matter the subject of this appeal.

16. There had been no conduct by the appellant before the apparent burglary which would have led to or supported a conclusion that the appellant was contemplating staging a bogus burglary. He had not sought, before the incident, to confirm or increase his insurance cover. The policy had not recently been taken out. There was no history of bogus or even questionable claims having been made by the appellant. It was not suggested that the appellant was in any financial trouble. He was of previous good character, as might have been expected. If the burglary was staged, the appellant's conduct in doing so appeared to lack any reasonable explanation.

17. With the possible exception of some compact discs referred to by Ms Dwyer, his boarder, there was no cogent evidence pointing to continued possession by the appellant after the burglary of goods allegedly stolen in the course of it.

18. If the evidence had remained in this state, there would have been no reason to have suspected any wrong doing on the part of the appellant.

19. However, Ms Danielle Dwyer was called by the prosecution at first instance. As at 7 February 1993 and up until about April 1993, she had been a tenant at 58 Hurley Street, Mawson. The appellant, who also resided at that address, was her landlord. It was common ground that, although on friendly terms, they did not have any more intimate relationship than that. She had her own bedroom.

20. Ms Dwyer was out of town on the weekend that the apparent burglary took place. On returning to the house on Monday, 8 February 1993, she was informed by the appellant that there had been a burglary on the previous Saturday evening or Sunday morning. It appeared that about 10 of her CDs were missing. Included amongst the items apparently taken in the burglary had been a CD container for a "John Denver" disc. The disc itself was in a CD player in Ms Dwyer's bedroom. The CD player had not been stolen and the disc had not been removed from it.

21. Her evidence then continued:

Now, Ms Dwyer, some time after 8 February 1993, did Mr McKee
tell you something in relation to the burglary? - - - Yes. He
told me that the thieves had been caught trying to cash in the
goods at a pawn shop and the pawn shop owner had alerted the
police and they had been able to get back the goods and charge
the thieves.

22. She was also asked:

Now, in relation to the burglary being solved, did you ask him
any questions in regard to your property, your CDs? - - - Yes.
I asked him if they had got them all back.
What were you told? - - - Well, he said most of them had come
back, yes.

23. She was told by the appellant they would be returned to her at some stage. Subsequently, about June, she found on her desk at work, after she returned from lunch, a manilla envelope "with most of my CDs in it". There was some writing on the envelope which she recognised as that of the appellant.

24. She noticed that of those CDs she could recall as missing, a "Hoodoo Guru" disc was not returned. Significantly, amongst the items given to her was a CD container appropriate for the same "John Denver" disc as had been in her disc player at the time of the alleged burglary. She assumed that the items given to her were some of the items taken in the apparent burglary. She noticed nothing about the returned items inconsistent with that assumption.

25. In cross-examination, she conceded that there might have been as many as 12 CDs of hers which had been taken. She could only recollect 10 titles. She agreed she had, earlier, made a list of titles. That list did not include "John Denver" as she still had that disc, though missing its cover. She believed the list to have been compiled "probably for insurance purposes". She also conceded that the reference she had said was made to the thieves having been "charged" could be inaccurate. It may have been that they were referred to by the appellant merely as "caught".

26. It should be noted that some of the CDs belonging to Ms Dwyer were taken from her bedroom.

27. There was evidence, which was not challenged, that the AFP had no record of any such event as Ms Dwyer recounted the appellant informing her about. As far as AFP records were concerned, no offenders had been identified, whether apprehended or not, and no property had been reported as having been recovered in relation to the apparent burglary of the appellant's home.

28. There was no other positive evidence of any assistance. When questioned by Det Sgt Overland, Det Sgt McKee, the appellant, exercised his right not to comment on the allegations concerning the matters subsequently deposed to by Ms Dwyer.

29. He gave no evidence before Magistrate Somes.

30. No inference adverse to the appellant can be drawn from his decision to exercise his right to silence: see Petty v R [1991] HCA 34; (1991) 173 CLR 95; Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217.

31. The learned Magistrate's decision was expressed in the following terms:

I must be satisfied beyond reasonable doubt that at the time
the report was made by the (appellant), it was false. The only
evidence upon which I could conclude that to the requisite
degree is the fact that the (appellant) has lied to Ms Dwyer
about the apprehension of the perpetrators of the offence. And
more significantly, returned Ms Dwyer the CDs which she says were
hers and which she says had been stolen that evening. There has
been no explanation forthcoming from the (appellant) concerning
the return of the CDs or of his other lie to Ms Dwyer about the
culprits being caught. The evidence clearly is that the culprits
have never been caught and there would be no reason for the CDs
to be returned by anybody other than someone who was somehow
associated with their removal.
It requires me, as I said, to be satisfied beyond reasonable
doubt that the report to the police was false. Accepting, as
there is no dispute, the fact that there was a lie told
concerning the apprehension and, more importantly, that the CDs
that were stolen were returned without any explanation to Ms
Dwyer by the (appellant), leaves me in a position where I am
indeed satisfied beyond reasonable doubt that the report of the
burglary was false. And I find the offence proved.

32. Counsel for the appellant, noting that the case against the appellant was circumstantial, referred to Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. That case would have required the learned Magistrate to find the offence proved only if the facts from which an inference of guilt was to be drawn were proved beyond reasonable doubt. The inference of guilt then must be drawn with that same degree of confidence before a finding of guilt can lawfully be made.

33. It was submitted that, impermissibly, his Worship had drawn an adverse inference from the silence of the appellant when he was asked to give an explanation by Det Sgt Overland. It was further submitted that the return of the CDs to Ms Dwyer by the appellant was open to some other explanation than that the burglary had, to the appellant's knowledge, been staged.

34. If his Worship did infer guilt from the lack of an explanation, that would have been erroneous. However, I do not read his Worship's ex tempore reasons in that way. His Worship concluded that the return of the CDs, accompanied by a false explanation for possession of them, was such as to lead inexorably to an inference of guilt. His Worship was implying, in my view, that he could not think of any innocent explanation reasonably open and, in the absence of any evidence suggesting such an explanation, the inference of guilt stood unchallenged.

35. The evidence is unchallenged that the appellant gave Ms Dwyer an untrue account as to how he came into possession of CDs said to belong to her. A court must be cautious before drawing an inference of guilt from lies whether told to investigators or appearing otherwise: see Edwards v R [1993] HCA 63; (1993) 178 CLR 193. A lie may often be explicable on grounds other than guilt of the offence charged. In this case, for instance, it was possible that the replacement of Ms Dwyer's CDs was an act of kindness by the appellant. It would not usually have been possible to identify the returned CDs as those originally taken. Ms Dwyer's name or other identifying mark appeared on none of them. His explanation, though false, could have been designed to avoid Ms Dwyer feeling under some obligation to him if, gratuitously, he replaced her missing property. He had failed to insure the premises adequately and that might have supported such an hypothesis.

36. However, that hypothesis fails if it be accepted that the CDs given to Ms Dwyer were the very same as those taken from her. Some question was raised as to whether the CDs returned to Ms Dwyer were identical with those taken. If there had been only complete CDs and cases taken and returned, that hypothesis could not be completely excluded.

37. However, the return of the empty "John Denver" CD cover is totally inconsistent with such an hypothesis. It is consistent only with the hypothesis that, as at the date on which the appellant told Ms Dwyer that some of her CDs had been recovered, he had them in his possession. If the explanation the appellant gave to Ms Dwyer for his possession of them is rejected as untrue, the only reasonable explanation for the appellant having those CDs is that he had possession of them from the time of the apparent burglary.

38. Any suggestion that the property could have been recovered directly or indirectly by the appellant without a report to his colleagues or superiors in the AFP is so fanciful that it must be rejected.

39. Similarly, the possibility that there was a burglary, but the CDs of Ms Dwyer had been simply mislaid or overlooked and the appellant chose falsely to claim that they had been recovered, seems to me also too fanciful to accept as a reasonable hypothesis.

40. I can think of no other hypothesis reasonable or otherwise, which could be regarded as consistent with the appellant's innocence. There is certainly no reasonable hypothesis consistent with innocence that I can think of. Therefore, it seems to me, that his Worship's conclusion was right. I do not in any way draw any adverse inference from the appellant's silence. I recognise that his false explanation to Ms Dwyer does not of itself prove his guilt. It is merely consistent with guilt. Nevertheless there is no reasonable hypothesis on the evidence before his Worship other than that the report of the burglary was false and that the appellant had staged the indicia of it for reasons which cannot and need not be specified with certainty. That false report required police investigation as he must have expected.

41. His appeal is dismissed. The conviction is confirmed. I will hear the parties as to any consequential orders or directions.